Mr Matthew William Gudgeon v Direct Freight (Aust) Pty Ltd
[2021] FWC 3800
•1 JULY 2021
| [2021] FWC 3800 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew William Gudgeon
v
Direct Freight (AUST) Pty Ltd
(U2021/281)
DEPUTY PRESIDENT CROSS | SYDNEY, 1 JULY 2021 |
Application for an unfair dismissal remedy -failure to comply with reasonable and lawful directions - misconduct - harsh, unjust or unreasonable.
BACKGROUND
[1] An application was filed on 9 January 2021 (the Application), by Mr Matthew Gudgeon (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), following his dismissal on 21 December 2020. The Applicant seeks an unfair dismissal remedy of compensation.
[2] The Applicant commenced employment with Direct Freight (Aust) Pty Ltd (the Respondent) on 28 October 2015. The Applicant was employed as a permanent full time linehaul driver pursuant to the Road Transport (Long Distance Operations) Award 2020 (the Award). His duties were to drive heavy combination vehicles. The Applicant’s average weekly earnings for the six month period prior to termination were $1805.13, and for the 12 month period prior to termination were $2069.16.
[3] On 5 March 2021, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:
1. Matthew William Gudgeon (the Applicant) is directed to file with the Fair Work Commission, and serve on Direct Freight (AUST) Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 19 March 2021.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 2 April 2021.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent’s witness statements and documents by 4pm on 9 April 2021.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 2 April 2021.
[4] The parties complied with the Directions. In particular:
(a) On 19 March 2021, the Applicant filed an Outline of Submissions and a Statement from the Applicant with annexures;
(b) On 2 April 2021, the Respondent filed an Outline of Submissions with annexures, a statement of Ms Penny Veld, HR Advisor of the Respondent, a statement of Mr David Wiskich, National Linehaul Manager, and a statement of Anthony Del Fabbro, Night Linehaul Manager;
(c) On 8 April 2021, the Applicant filed a Response to the Respondent’s Submission with annexures.
[5] The hearing of the matter occurred on 20 April 2021 (the Hearing), with further brief oral submissions being received in further proceedings on 12 May 2021. After the Hearing, while a number of previous submissions had been filed, the parties filed the following submissions:
(a) On 4 May 2021, the Respondent filed a document titled “Respondents Concluding Submission” (the Respondent’s Submission); and
(b) On 9 May 2021 the Applicant filed a document titled “U2021/281 Applicant Response to Respondent Closing Statement” (the Applicant’s Submission).
[6] In the Hearing each party was capably represented, the Applicant by his Mother, and the Respondent by Mr Catania. Thereafter the parties filed written submissions and a short hearing was convened on 12 May to allow the parties to address those submissions.
Background
[7] There were a number of factual disputes between the parties, and the determination of those factual disputes is undertaken where those facts relate to the various issues in the matter. The determination of those factual disputes often involved the question of the acceptability of the evidence of either the Applicant or Ms Veld.
[8] I found Ms Veld to be an honest and responsive witness, who sought to directly and truthfully answer the questions asked of her. By contrast, I found the Applicant to be disposed to tailor his evidence to have it best suit the arguments he sought to advance irrespective of the truth of such evidence or sustainability of such arguments.
[9] On 27 October 2015, the Applicant completed and signed a basic General Induction document that generally acknowledged the requirements of the Respondent’s Leave Management policy regarding advising of absences and providing supporting documentation.
[10] The Applicant stated that he enjoyed his work, however the work environment began to change in February 2020. The Applicant claimed he started to experience bullying from some of his colleagues and was physically assaulted. He stated that he reported the assault to his supervisor several times but that no action was taken. The alleged bullying increased as a result and was still ongoing on 9 July 2020, the last day upon which the Applicant attended work.
[11] I accept that, from around this time, the Applicant suffered mental health issues. The Applicant’s representative conceded that no evidence of a diagnosis had been presented and so the diagnosis was “hearsay,” 1 however the medical certificates in evidence disclose mental health issues suffered by the Applicant.
[12] On 9 July 2020, the Respondent received a report from Mr Del Fabbro advising that the Applicant had verbally abused and threatened physical violence against a work colleague. In his statement, the Applicant himself described the incident as “uncharacteristically verbally threatening another employee during an argument.” At 3:28pm on 9 July 2020, the Respondent issued a suspension letter, “pending the conclusion of the investigation and discussions” to the Applicant.
[13] At 3:41pm on 9 July 2020, the Applicant replied by email stating “And im out on sick leabe atm so that isn’t valid.” (original text) Later that afternoon there was a telephone call between the Applicant and Ms Veld in which I accept the Applicant said, “I’ll call a Barrister to sue Direct Freight,” and “I might have to go on stress leave then.”
[14] On 13 July 2020, a formal meeting notification for a meeting on 14 July 2020, was issued to the Applicant regarding the events of the 9 July 2020. The Applicant emailed a response that “Support person may take up to two weeks depending on there available time.” (original text).
[15] On 14 July 2020, and after further correspondence, the Respondent suspended the investigation relating to the 9 July 2020 incident as the Applicant had advised that he was suffering from a medical condition. The Applicant was advised he must provide appropriate documentation pursuant to the Respondent’s Leave Management policy. The Applicant was provided with a copy of that policy.
[16] On 16 July 2020, the Respondent contacted the Applicant regarding him providing supporting documentation for his absence from work for the period 13 to 16 July 2020. In his reply, the Applicant stated “Meeting request for next week waiting to hear from you about those apparent illegal laws that you may have made up.”
[17] 22 July 2020, the Respondent sent a further email to the Applicant in the following terms
“Dear Matthew,
Direct has not received any further correspondence from you with regards to your capacity for work this week nor have you provided any updates to your Supervisor David Wiskich as per Direct’ s Leave Management Policy . It is a requirement where an employee is absent from work for more than one day, to contact their Supervisor on a daily basis to advise of continuing absence, along with provision of any supporting evidence which outlines your current medical condition. David Wiskich can be contacted on 0432 007 286.
We have provided a copy of Direct’s Leave Management policy for your reference.
If I can be of any further assistance with regard s to this matter, please let me know.”
[18] On 31 July 2020, the Respondent issued an employment abandonment notification to the Applicant as no communication had been received from the Applicant since 17 July 2020. The Applicant responded by two emails on that date stating “I havnt abandon employment i am currently under work cover claim” (original text) and “I will forward this to my lawyer as I am currently suspended as your previous email and doctor has put me on workers comp.”
[19] The Respondent was unaware of any workers compensation claim by the Applicant, and on 3 August 2020, sought to be provided by the Applicant with any medical certificates and rehabilitation plans in order to allow the Respondent to comply with its statutory obligations.
[20] On 16 October 2020, the Applicant’s workers compensation claim for a psychological workplace injury was dismissed under s.11A(1) of the Workers Compensation Act.
[21] 30 October 2020, the Respondent forwarded the following email to the Applicant:
“We are in receipt of the attached medical certificates. As you are aware the claim for workers compensation has been closed.
If you wish to apply for Personal Leave for your current medical absence please log onto your portal and submit your application promptly. I attach some user guides for your reference.
I am currently filling in for Penny Veld as she is on leave but have cc’d her on the email. Regards”
[22] On 12 November 2020, the Respondent sent a further email to the Applicant stating:
“Hi Matthew,
We note that your approved leave is due to come to an end as of Monday 16th November as per your leave request executed on 2 November, 2020.
Can you confirm your intentions to return to work or if you may require additional leave. We also take this opportunity to advise that prior to returning to work and to ensure Direct can provide reasonable support to facilitate a safe return to work that you provide information regarding your current medical and physical capacity in order to support discussions with you regarding employment matters.
I have attached a leave application form for your convenience (if required). Please let me know if you require anything further.”
[23] Three minutes after the above email, on 12 November 2020, the Applicant replied “We are appealing the lawyers should have informed you.” The Respondent replied to that email as follows:
“Hi Matthew,
As previously advised, as an existing employee of Direct Freight you are required to notify of your continued absence from work including any additional information relating to your physical and/or medical capacity as per Direct’s Leave Management Policy. Any continued absence from duties due to illness or injury or other leave type (annual leave or leave without pay) must be submitted via a leave application along with any relevant additional information or documentation including medical certificates.
Based on your reply, we will roster you as leave without pay for the next month unless I hear otherwise from you. I have sent you a leave form which you can elect to complete and return to me.
If you are due to return to work any earlier, please make contact with me. Otherwise I will make contact again towards the end of the rostered leave period.
If I can assist you any further, please do not hesitate to get in touch.”
[24] Between 30 November and 4 December 2020, the Applicant sent three brief emails to the Respondent challenging the correctness of his pay. On 4 December 2020, the Respondent sent to the Applicant the following email:
“Hi Matthew,
FYI
Medical certificates provided were for periods;
• 23/11-29/11 (paid this week)
• 30/11-4/12 (due to be paid next week)
Previous week 16/ 11 - 22/11 was unpaid as the company has no documentation to support this absence so LWOP was applied. If this is not the case please provide supporting documentation and I will arrange prompt payment.
Regards”
[25] The Respondent did not receive any notifications from the Applicant from 7 to 14 December 2020. That week the Applicant stated that his mental health was extremely poor and was one of the worst weeks he had experienced. On 14 December 2020, the Respondent sent the following letter to the Applicant:
“Dear Matthew.
RE: ABANDONMENT OF EMPLOYMENT
With reference lo your employment with Direct Freight (AUST) Pty Ltd T/AS Direct Freight Express Ply Ltd you have been absent without notification from duty since the 7 December, 2020. You have failed to maintain regular contact with the company to explain your unauthorised absence as per Direct’s Leave Management Policy.
You have not provided any notification or supporting evidence for your absence from duties for period 7 December, 2020 to date.
We hereby advise you that should the company not receive correspondence from you to explain your unauthorised absence, which is regarded as satisfactory, within twenty-four (24) hour’s, the company will have no other alternative but to accept that you have abandoned your employment and your employment contract will be terminated immediately.
Any monies that may be due at the conclusion of the employment relationship will be processed within seven (7) days.
Regards,”
[26] The Applicant replied to the above letter by email late on 14 December 2020, stating “I havnt been able to get in too see my doctor due to covid hes back at work tomorrow will provide something by tomorrow afternoon” (original text).
[27] In the Hearing, the Applicant gave evidence that he was actually at his doctors on 14 December 2020. He stated:
“Yes, I was there that day, but because it was dealing with something else we didn’t get a medical certificate, so I went back the following day after and had him - and he backdated it.” 2
[28] On 15 December 2020, the Respondent contacted the Applicant’s Doctor to test the veracity of the Applicant’s explanation that the Applicant’s Doctor had been unavailable. That was because at that time locally acquired COVID-19 transmission cases in NSW for the week ending 12 December 2020 were zero, and the total locally acquired COVID-19 transmission cases in NSW for the previous four weeks were one.
[29] Ms Veld contacted the medical centre that the Applicant attended and spoke to a person who identified herself as “Sarah”. Sarah advised Ms Veld that the Applicant’s Doctor, Dr Kako, was available for consultations from 6 to 15 December 2020, except for 9 December.
[30] On 16 December 2020, the following show cause letter was issued by the Respondent to the Applicant (the Show Cause letter):
“RE: LETTER OF ALLEGATIONS - SHOW CAUSE
Dear Matthew,
This letter has been drawn to address serious issues of concern regarding your employment at Direct Freight (AUST) Ply Ltd (Direct).
Background
You commenced employment on the 28 October 2015, accepted and agreed to the terms of employment as per employment contract, associated polices and relevant legislation.
Direct advises that an internal review in your unexplained absence from work has been conducted. We refer to correspondence issued to you via email on 14 December, 2020 with regards to your unexplained absence for period 7th- 11th December, 2020. This incident has been the catalyst for the commencement of this show cause process and we advise Direct is reviewing viability of your employment.
Allegations
An investigation into these allegations has commenced and you are required to respond to each accordingly.
1. Breach of Direct’s leave Management Policy, specifically failure by you to notify of absence for period 7th-11th December, 2020. Specifically, after all correspondence and training regarding Leave Management Policy why you could not contact your Employer and advise of your absence.
a) Direct advise that we have previously corresponded and educated you on your obligations under Direct’ s Leave Management Policy on dates below:
16th , 20th 22nd & 31st July, 2020
3rd August, 2020
30th October, 2020
12th November,2020
2. Conduct - You have deliberately and willfully responded in a manner by advising your doctor Dr Andrew Kako is not available due to COVID to deceive your employer and misrepresent yourself, we provide the following quote from your email received by Direct on 14/12/ 2020 @ 7:46pm.
“I havnt been able to get in too see my doctor due to covid hes back at work tomorrow will provide something by tomorrow afternoon”
Direct has confirmed with Minto Medical Centre that Dr Andrew Kako was in fact available to see patients between 6/12/2020 to date, and only unavailable on 9/12/2020.
It is the opinion of management that these allegations are extremely serious and we strongly encourage you to respond to these allegations and raise any/all matters that you wish to have reviewed.
Response
Your response to the above is to be submitted in writing, either by email or hand-written format, to myself, Penny Veld by email: [email protected] by no later than close of business on Friday 18 December, 2020.
Once Direct is in receipt of your response to the allegations, a detailed review will be conducted and you will then be required to make yourself available for a formal meeting.
A review will be conducted into the allegations, your response and your employment history. If, Direct concludes that the allegations are substantiated, this may result in further disciplinary action, up to and including termination of your employment.
If you choose not to respond to the allegations and wish to discontinue the process by electing to resign from Direct, this must be submitted in writing.
It is important to advise that should Direct not receive correspondence from you in relation to this matter, there will be no alternative but to deem that you have abandoned your employment with Direct continuing its due process which may result in the termination of your employment.
Status Quo
Whilst this procedure is being followed, the status quo will be maintained and work shall continue in the manner it was carried out prior to this notice, except where an employee’ s health and/or safety would genuinely be threatened if they were to continue work. The maintenance of the status quo shall not be prejudicial to either party.
Confidentiality
Please note that the investigation into these matters is confidential and we request that you do not disclose the matters addressed within this process with any other person(s} other than the stakeholders involved within this process. This extends to your nominated support person.
It is important to note that breaches of confidentiality are considered to be serious in nature and may result in disciplinary action, including termination.
Employee Assistance Program
I understand that matters such as these may prove difficult and if you need any support in dealing with this matter, Assure Programs provides Direct employees with confidential independent professional counselling services. Assure Programs can be contacted on 1800 808 374.
If you have any questions regarding this process, please contact me directly to discuss.”
[31] On 21 December 2020, the Applicant replied to the Show Cause letter. In that reply, the totality of the Applicant’s response was “Penny please explain why you contacted my doctor’s office in full detail.”
[32] As the Applicant’s reply did not address the allegations outlined in the show cause letter, the Respondent sought to organise a telephone conference with the Applicant. The following letter was sent:
“RE: FURTHER DISCUSSIONS REGARDING YOUR EMPLOYMENT
Dear Matthew,
With reference to your employment with Direct Freight (AUST) Pty Ltd (Direct), in review of your reply received today via email on 21 December 2020 to Show Cause notification issued to you on 16 December, 2020, we note the reply fails to address the allegations. Direct asserts there is a valid reason for termination;
1. Your conduct to be serious, wilful and deliberate behaviour that has proven to be inconsistent with company policy and procedures and inconsistent with continuation of your employment contract.
2. Breach of Leave Management Policy.
We again offer you the opportunity to further discuss the above via:
1. Phone conference. Direct will contact you on your mobile 0418 876 895 on 22 December, 2020 at 11:00am.
Regards,”
[33] The Applicant responded to the above letter by emailing the Respondent stating “Regards of this email im waiting consultation from my lawyer do not push matters and bully and harass me any further id also like someone else to deal with me from this point on wood’s as ur increasing the anxiety i am feeling.” (original text)
[34] The Respondent then resolved to terminate the Applicant’s employment and a letter in the following terms was sent to the Applicant:
“Dear Matthew,
RE: TERMINATION OF EMPLOYMENT
We refer to the Show Cause notification that was issued 16 December 2020 regarding your employment with Direct Freight (Aust) Pty Ltd (Direct) and note that you have been provided with adequate opportunity to seek legal support and reply to our letter of allegations.
Direct today, 21 December, 2020 have furth er provided you with an additional opportunity to discuss the allegations as your reply failed to adequately address the allegations. It is evident from your response that you do not wish to participate in such discussions.
In review, Direct has elected to terminate your employment effective immediately, due to:
1. Conduct - Serious, wilful and deliberate behaviour to be inconsistent with company policy and procedures and inconsistent with continuation of your employment contract.
2. Breach of Leave Management Policy.
Any monies that may be due to you at the conclusion of the employment relationship will be processed forthwith. Please note a copy of this notification has been posted to your current residential address on file.
We wish you well for your future endeavours.”
[35] The Applicant continued to have no capacity to work up to date of termination, and thereafter had no capacity to work until the end of February 2021. 3
[36] The Applicant obtained alternate employment driving a small truck from 27 February to 15 March 2021, and a permanent interstate driving position, equivalent to his former position with the Respondent, commencing 21 March 2021.
CONSIDERATION
Preliminary findings
[37] I am satisfied that:
(a) The Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));
(b) His unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;
(c) The Applicant is a person protected from unfair dismissal in that:
i. he had completed the minimum employment period set out in ss 382 and 383 of the Act; and
ii. an award, the Road Transport (Long Distance Operations) Award 2020, applied to his employment (s 382(3)(b)(ii)); and
(d) His dismissal was not a case involving the Small Business Fair Dismissal Code (s 385(c)).
Was the Dismissal Harsh, Unjust or Unreasonable?
[38] I must consider the question of whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal, pursuant to the considerations outlined in s.387 of the Act. dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair.
[39] Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable”:
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) Whether the person was notified of that reason; and
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters that the FWC considers relevant.
(a) Valid reason
[40] The reasons relied upon by the Respondent were best summarised in the show cause letter sent to the Applicant on 16 December 2020. There the reasons were listed as:
(a) Breach of the Respondent’s Leave Management Policy, involving failure by the Applicant to notify of his absence for period 7th-11th December, 2020. That breach occurred after significant correspondence and training regarding the Leave Management Policy; and
(b) The Applicant deliberately and wilfully responding to the Respondent’s enquiry by advising that his doctor Dr Andrew Kako was not available due to COVID when that was false.
[41] As the Full Bench found in Sydney Trains v Hilder: 4
The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:
(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.
(i) Breach of the Respondent’s Leave Management Policy
[42] In the Respondent’s Submission, the Respondent referred to an earlier submission of the Applicant, and submitted as follows:
“16. The applicant in his “Applicant Conclusion” alleges that the applicant was not aware of the consequence of breaching the Leave Management Policy being termination, and therefore the termination was harsh. The applicant appears to suggest that it needed to have been made expressly clear to him - word by word – that breaching the Leave Management policy could result in termination. With respect, this notion is a specious argument. The applicant was well aware he had continually breached the Leave Management policy and those breaches were known to him (for example, see page 3 of the Applicant Conclusion in which the following is recorded “On seven occasions, the Respondent notified Matthew there was a breach of leave policy”). Despite numerous discussions, emails and abandonment notifications over a short period of 5 months, there was a continued pattern of disregard of company policy and procedures by the applicant.
17. The, with respect, silliness of this argument can be seen by the assertion in the Applicant Conclusion that “The Respondent gave no warning that the eighth breach would result in summary dismissal”. The applicant’s apparent suggestion that he was not aware that termination might occur after so many repeated breaches, and after receiving the previous abandonment letters (both of which refer to the drastic consequences of not properly responding to them) cannot and should not be accepted.”
(Document references omitted)
[43] In the Applicant’s Submission, in reply to the above submission, submitted that:
“…the Respondent’s conclusion has a view that our reasoning is silly and cannot and should not be accepted. We do not find it silly as it is based on relevant legislation and case law and will now provide further clarity:
3. “Finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable” B, C and D v Australian Postal Corporation T/A Australia Post (C2011/6623) paragraph 48
4. “Thus, a failure to monitor compliance or enforce a policy can be a relevant factor that weighs against a finding that a dismissal for breach of the policy was not harsh, unjust or unreasonable. If widespread breaches of policy, of the sort that occurred in this case, occur without an employer response then this weighs against a decision that the dismissal was justified and not harsh, unjust or unreasonable.” B, C and D v Australian Postal Corporation T/A Australia Post (C2011/6623) paragraph 67.
5. Matthew suffered the consequence stipulated in the leave policy as he was not paid for that time.
6. The Respondent made no further response to the breach on seven occasions and Matthew’s employment continued.
7. On the eighth occasion, without warning, the Respondent decided to summarily dismiss Matthew for a breach of leave policy, making Matthew’s dismissal harsh, unjust and unreasonable.”
[44] I find the Applicant’s submissions above unconvincing and unacceptable, and the decision on which the Applicant relies when considered upon the facts in this matter is in fact against the Applicant’s case. The Applicant repeatedly breached the Respondent’s Leave Management Policy regarding the requirement to notify and provide proof of illness and/or injury in support of medical absence. Emails seeking compliance with the Leave Management Policy, including abandonment notifications, were sent on at least seven occasions. The Respondent assiduously monitored compliance with the Leave Management Policy and consistently enforced that policy.
[45] The Applicant was clearly aware of the Leave Management Policy, and he agreed that awareness increased between 20 July 2020 and October 2020. 5 Indeed, in his general induction that he completed and signed in 2015, the Applicant acknowledged that it expressly required the Applicant to notify of his absence and the requirement of provision of supporting documentation.
[46] It is incorrect to submit, as the Applicant does, that the Applicant did not know a breach of the Leave Management Policy could result in termination, or that there was a failure to warn that such breach could result in termination. On 31 July 2020, the Respondent issued the first employment abandonment notification to the Applicant as no communication had been received from the Applicant since 17 July 2020. That notification stated:
“We hereby advise you that should the company not receive satisfactory and/or reasonable justification for your extended absence from you to explain your extended unauthorised absence, the company intend to cease your employment on 7th August, 2020 by determining that you have abandoned your employment.
[47] I find that from 31 July 2020, the Applicant fully understood the possible consequences of breach of the Leave Management Policy, but nonetheless knowingly failed to comply with that policy. In so not complying, the Applicant engaged in a course of email conduct in response to the Respondent’s legitimate enquiries that can only be described as belligerent.
[48] There was a valid reason for the Applicant’s dismissal based upon breach of the Leave Management Policy. That conduct clearly occurred and it justified termination.
(ii) Dishonest Response to the Respondent’s Legitimate Enquiry
[49] On 14 December 2020, the Respondent made a legitimate enquiry in relation to the Applicant’s failure to comply with the Leave Management Policy. It sought explanatory correspondence that it regarded as satisfactory. The Applicant deliberately and wilfully responded to the Respondent’s enquiry by advising that his doctor Dr Andrew Kako had not been available due to COVID when that was false.
[50] In the Hearing, the Applicant gave evidence that he was actually at his doctors on 14 December 2020. He stated:
“Yes, I was there that day, but because it was dealing with something else we didn’t get a medical certificate, so I went back the following day after and had him - and he backdated it.” 6
[51] I found the above evidence of the Applicant entirely unconvincing. While the Applicant claimed he was dealing with a different medical issue of some delicacy on 14 December 2020, there is absolutely no reason why he could not have:
(a) Sought a medical certificate on 14 December 2020, regarding his existing condition, from Dr Kato. It is notable that other medical certificates of Dr Kato are sparse in their detail of diagnosis; or
(b) Told the Respondent he had been to Dr Kato on 14 December 2020;
[52] The explanation initially given by the Applicant sought to mislead the Respondent into believing that the Applicant had been unable to comply with the Leave Management Policy from 7 to 14 December 2020. That was false, at the very least in relation to 14 December 2020.
[53] The Applicant’s dishonest response was not, as the Applicant submitted, “a small white lie to avoid embarrassment.” It was a calculated attempt to mislead the Respondent as to why, again, the Applicant had disregarded the requirements of the Leave Management Policy. As observed by Senior Deputy President Richards in Gunning v Cetnaj Queensland Pty Ltd: 7
“[68] An employee owes a duty to his employer to be honest in his dealings with it. To do otherwise is to compromise the necessary trust and confidence that is an integral part of the employment relationship. This does not mean that an employee must answer any and all questions posed to him or her by his employer in an investigation or interview. But it does mean that an employee must respond honestly to any genuine enquiry made of the employee that is relevant to the conduct or other issues in question or under investigation.”
[54] While the Applicant claimed in his Statement in the proceedings that “The week cited in the abandonment letter was from 7 December 2020. That week my mental health was extremely poor and was one of the worst weeks I had experienced” it is clear on the Applicant’s new concession in the Hearing that he was not precluded from attending his doctor, at least on 14 December 2020.
[55] Insofar as the Applicant challenges the propriety of the Respondent’s direct contact with the offices of the Applicant’s doctor, I see no such impropriety in that contact. The Respondent had received a response that it, unsurprisingly, saw as questionable. Just as an employer can require provision of evidence that “would satisfy a reasonable person” of illness (s.107(3) of the Act), I see no reason why the Respondent could not make reasonable enquiries regarding the failure to provide such evidence.
[56] There was a valid reason for the Applicant’s dismissal based upon the Applicant’s dishonesty. That conduct clearly occurred and it justified termination.
(iii) Other Reasons Alleged by the Applicant
[57] The Applicant contended that the Respondent relied upon the 9 July 2020 incident when deciding to terminate, and that such reliance was unfair as that incident was never investigated. The only substantial basis for that submission is the passage of the 16 December 2020 Show Cause Letter that states “A review will be conducted into the allegations, your response and your employment history.”
[58] I reject the Applicant’s assertion of another invalid reason and find the 9 July 2020 incident did not form any basis for the Applicant’s termination. I accept Ms Veld’s evidence where she specifically denied such reliance. 8
(b) Notification
[59] The Applicant was notified of the of the reasons for termination, most particularly by the Show Cause Letter of 16 December 2020, but also in the letter of 21 December 2020. The Show Cause Letter clearly outlined the two perceived valid reasons and sought a response. The only response from the Applicant was to ask, five days later, why the Respondent had contacted the Doctor’s office.
(c) Opportunity to Respond
[60] Pursuant to both the Show Cause Letter of 16 December 2020, and the letter of 21 December 2020, the Applicant was provided an opportunity to respond. No attempt was made by the Applicant to respond to the enquiries advanced by the Respondent. The Applicant.
(d) Support person
[61] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[62] The Applicant was not refused a support person, however, he does not seem to have been aware that he may have required one. Nonetheless, I consider this a neutral factor.
(e) Warnings
[63] As the reason for termination was misconduct, this factor is not a relevant consideration in this matter.
(f/g) Size of the business/human resources
[64] These are not relevant considerations as the Respondent is a relatively large company and is well resourced.
(h) Other relevant matters
[65] While there existed a valid reason for the Applicant’s dismissal based upon breach of the Leave Management Policy, were that the only reason I would have doubted whether, on the facts of the matter, that misconduct on its own was sufficiently serious to justify summary dismissal. Combined with the Applicant’s dishonest response to the Respondent’s legitimate enquiry, however, I find the conduct of sufficient gravity to justify dismissal.
Conclusion on Dismissal
[66] Taking into account the matters referred to above, I find that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had valid reasons upon which it relied to dismiss the Applicant, and no procedural fairness issues arose.
[67] The termination of the Applicant was not harsh unjust or unreasonable. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
A Gudgeon, for the Applicant.
S Catania, of the Respondent.
Hearing details:
2021.
Sydney.
April 20 and May 12.
Final written submissions:
2021.
May 12.
Printed by authority of the Commonwealth Government Printer
<PR731226>
1 Transcript of Proceedings, PN 743 and PN 747.
2 Transcript PN 376
3 Transcript PN876.
4 [2020] FWCFB 1373, at [26].
5 Transcript of Proceedings, PN 175 and 176.
6 Transcript of proceedings, PN 376
7 [2012] FWA 6627 (3 August 2012)
8 Transcript PN 726 and 734.
0
2
0